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(1) History of EU Law

The first defining feature of the medieval experience of the law, which we will now begin to examine in depth, is its profound discontinuity with the experience that precedes it. Medieval legal thought begins to define itself amongst the strategies and innovations with which the society of the fourth, and especially the fifth, centuries AD sought to reorient itself in the void generated by the collapse of the Roman political structure and of the culture that existed within that structure. Historically, the most salient point is the manner in which the society of the time dealt with that sudden absence of power. For now, we shall deal with the void as it affected the political sphere, which was the most consequential and the most problematic difficulty the new system of law had to face.

A machinery of power as robust, well-constructed and extensive as that of the Roman empire would not, indeed could not, be replaced by one of equal quality and vigour. The novel and defining a feature of the era is, therefore, the incompleteness of political power in the medieval period. By incompleteness, I mean the lack of any totalizing ambition in the political system of the time: its inability, and its unwillingness, to concern itself with controlling all forms of social behaviour. The political sphere in the Middle Ages governed only certain aspects of interpersonal relationships, leaving others, many others, open to the influence of competing powers. It is clear that political power – as the supreme power – was exercised in a variety of ways and was often wielded to full effect across certain defined geographical areas. It was also not uncommon to see unlimited power concentrated in the hands of a single prince who used it tyrannically. However, throughout the medieval period, the totalizing and all-encompassing mentality which, as we shall see, will be the distinguishing feature and the ultimate ambition of the princes of modernity is absent. The medieval prince concerns himself only with that which will help him maintain a firm grip on power: the army; public administration; taxes; and repression and coercion of the populace insofar as it helps him maintain order. He is not interested in being a puppeteer who pulls all the strings in the social and economic interactions of his subjects.

We may well ask, and indeed we ought to ask, why this was so: why was a political power in the Middle Ages, despite many instances of tyranny, fundamentally weak and above all incomplete? The answer is that this situation was brought about by the conjunction of a very particular set of circumstances. The centuries of transition between late antiquity and the medieval period, that is from around the end of the fourth century until the sixth, bore witness to a great population crisis brought about by war, disease and famine, a crisis which wrought dramatic changes upon the social and agricultural landscape. The population fell significantly and the area of land cultivated fell with it. Subsistence became more and more difficult and the natural world regained its status as an untamed and untameable environment, looming much larger in the collective imagination. The anthropocentric society of Rome, which was founded upon an optimistic faith in man’s abilities to subdue nature, was gradually replaced by a more pessimistic attitude with much less belief in man’s capacities and far greater emphasis on the primacy of reality. The anthropocentrism of classical civilization was therefore slowly overtaken by a resolute reicentrism: a belief in the centrality of the res (‘thing’), and of the totality of things that make up the cosmos.

This attitude became a collective belief that invested the most insignificant of objects with an aura of power. Power was attributed first and foremost to the natural world, which was seen as a system of primordial rules to be respected. This system of rules conditioned the daily life of medieval communities. There are also two other, more specific, historical factors which had a great influence on medieval social structures. One of the defining events of the first centuries of the nascent Middle Ages was the intermingling of the Nordic races with Mediterranean civilization Ostrogoths, Visigoths, Vandals, Swabians, Longobards, Burgundians and Franks all established themselves in the Mediterranean region, and built stable socio-political structures there. As one would expect, they brought with them their own political mores, which were distinctive and very different from those they found where they arrived. In the Roman empire an idea of power as sacred, originating in the Orient, had held sway for some time; the holders of power in Rome were therefore seen as earthly manifestations of the divine. The northern races, meanwhile, took a more detached view, seeing power as a practical necessity and casting the wielder of power as his subjects’ guide. There, therefore, arose in the collective imagination a narrative of descent from distant ancestors who were wanderers. On the other hand, there was the Roman Church, whose influence grew steadily after the fourth century, with an organizational network which spread to the most far-flung territories. Given the absence, or impotence, of imperial power in many of these locations, the Church was by now the de facto political power there and could not but frown upon the arrival of a robust rival system, especially one which moved the attitude of the people in an anti-absolutist direction.

The result was, as I have said above, that the political system of the Middle Ages was characterized by a fundamental incompleteness, with important consequences for the rule of law. There certainly was a link from political power to law, that is to say, there was law conceived of and promulgated under the influence of politics. This was the sort of law which emanates from on high in the form of commandments; indeed, it was the sort of law to which Europeans were accustomed until recently at the height of modernity. In medieval times, however, such politically generated law was restricted to the areas of legality that were useful to a prince in the exercise of power. Yet great swathes of the legal relationships which governed the daily lives of the people could not be included amongst these ‘political’ laws. In these relationships, to which the political system of the times was largely indifferent, the law was able to regain its normal character of reflecting the reciprocal demands of society and the plural currents which circulate through that society. The law, when generated de bas en haut, is part of the complex and shifting reality of a society which is in the process of ordering itself and, by so doing, preserving itself. This type of law is not written in the commandments of a prince, in an authoritative text on the paper of the learned; it is an order inscribed in things, in physical and social objects, which can be read by the eyes of the humble and translated into rules for living. An unexpressed but keenly felt suspicion arises that the law, the true law that is, rather than the artifice which helps the powerful maintain their supremacy, is a totality of values underlying social and economic relationships. The law is thus an order which functions as a lifejacket for society, whilst the community, aware of this, responds to its values by observing the rules which emanate from them.

Two points must be emphasized.

This type of law is more organizing than empowering (or potestative in technical language). The difference between the two adjectives is not insignificant: the former signifies a bottom-up generation of law that takes objective reality into respectful account; the latter describes the law as the expression of a superior will, which descends top-down and can do violence to objective reality in its arbitrariness and artifice. In a normative vision, the law is behaviour itself which, when understood as a value of life in general, is followed and becomes the norm; it is not the voice of power, but rather the expression of the plurality of interests coexisting in any given section of society.

The second fundamental point, and it is one which follows closely from the first, is that, when viewed in this light, the law acquires its own autonomy – despite being submerged in history, and despite being buried under the corporeality of the various interests and fluctuating demands of society. The law emerges as the ordering principle of society, which strives for legal solutions which allow society to continue independently of who wields power. And, contrary to what occurs under the leaden cape of statutory law (in late modernity, for example), where the law becomes the expression of a centralized and centralizing will (legal monism), we will observe that the Middle Ages are, throughout, an age of legal pluralism. The medieval period demonstrates the possibility of the coexistence of diverse legal orders emanating from diverse social groups, even whilst the sovereignty of one political authority over the territory those groups inhabits remains unquestioned. It is in this incompleteness of medieval political power, I believe, that the vital key to grasping the ‘secret’ of the developments in the experience of the law in the early medieval period lies. The distinctive features of medieval law from the beginnings of the era onwards stem directly from this incompleteness.

Given these considerations, the distinctiveness of medieval law imposes upon us certain cultural scruples. We must proceed with extreme caution when deploying vocabulary and concepts closely associated with a modern vision of the law. Indeed, in my opinion, we must avoid such terms and ideas for fear of provoking grave misunderstandings. The most problematic of these concepts, although by no means the only one, is the notion of the state, which many historians, legal and otherwise, transplant without hesitation to the Middle Ages. Leaving aside the fact that ‘state’ could also be used by medieval writers to signify one’s rank or social standing, what is most notable for our purposes is that the term state, as it is defined and deployed in current usage, has diverged profoundly from the medieval understanding of the term. Indeed, far from signifying a structural continuity, the term has come to denote a concept of extreme historicity: a political entity that is inextricable from the all-encompassing, monopolizing, potestative legal mindset that produced it. In effect, the state is the historical incarnation of political power that has attained perfect completeness. This is not to pose the crude question of whether there was such a thing as the state in medieval Europe, which is the dichotomy to which some have attempted to reduce the methodological problem I am discussing here. Rather, I would argue that, when studying any point in the course of medieval civilization, we should not expect to find the sort of complete political power that we moderns call the state. It is thus an elementary act of intellectual (and terminological) rigour to avoid both the word and the notion state when discussing the medieval historical context.